Chris Moses: Working to stricter Home Office controls

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Lincolnshire employers face a stricter regime, and potentially harsh penalties, if they use illegal workers from abroad and don’t have processes in place to carry out right to work checks.

November 24 saw the latest implementation of the Immigration Act 2016, which requires non-EU workers moving to the UK to be in possession of an offer of employment with a salary of at least £25,000, increasing to £30,000 in April 2017.

Most of the Immigration Act’s new obligations upon employers came into play in July, which included an increased penalty of up to £20,000 per illegal worker, as well as a five year prison sentence, for employers found to be using illegal workers.

Previously employers could face prosecution only if they were knowingly using illegal workers. The new legislation, and penalties, now applies to employers who didn’t know that their workers were illegal, but failed to conduct necessary checks.

The Home Office is specifically targeting care homes and the catering and hospitality sectors, both of which employ high numbers of people in Lincolnshire.

In addition, the Gangmasters Licensing Authority will be conducting their own checks within agriculture, horticulture and food production employers, of which Lincolnshire also has a significantly high number.

One particular issue facing Lincolnshire businesses who rely on overseas workers, is the number of Polish, Latvian and Lithuanian workers is starting to fall. As a consequence, the risk of employing workers from outside of the EU, such as Russia, Georgia, Ukraine and Mediterranean non-EU countries may increase.

To avoid problems employers need robust procedures in place to check all workers’ entitlements to work in the UK, that visa expiry dates are tracked and that managers know how to respond to Home Office checks. These procedures should ideally be applied to all workers, including agency and casual workers, not just directly employed staff.

At the same time such procedures should not put the employer at risk of claims for race discrimination. They need to be applied to everyone, and not just those who appear to be from overseas.

Procedures should also contain details of what managers should do if someone does not have the right to work.

Dismissal of an illegal worker is potentially fair, however it is not automatically fair. An employer cannot simply sack someone on the spot, if they are suspected of not being entitled to work in the UK.

It is important to follow a process of investigation and conduct a fair hearing with the worker, similar to that described in the ACAS guidelines on managing gross misconduct. This would enable the worker to prepare their evidence, and hopefully prove that they are a legitimate worker.

Chris Moses is Managing Director of Sleaford based Personnel Advice and Solutions Ltd and holds a Masters Degree in Employment Law from Leicester University. He is also a Chartered Fellow of the Chartered Institute of Personnel and Development and has over twenty years front line HR experience.